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Sex offender’s home ownership doesn’t impact residency restriction

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A convicted sex offender who argued that a probation condition prohibiting him from living within 1,000 feet of a school is unduly restrictive on his property interest in a home he owns lost his appeal before the Indiana Court of Appeals.

Mark Gaither committed child molesting in 1995 and 1996 but wasn’t convicted until August 2008. As part of his probation and parole, he isn’t allowed to live within 1,000 feet of school property. He owns a home in Muncie that is within 1,000 feet of a middle school, and he wants to live there. The statute requiring that sex offenders on probation/parole be prohibited from living within 1,000 feet of a school was enacted in 1999.

Gaither claims because he committed his offenses before the statutes were enacted, he isn’t subject to them and the residency restriction placed on him violates the ex post facto clause of the Indiana Constitution.

Even though his probation has since expired, the COA ruled on the case because of public importance.

Gaither tried to distinguish his case from Hevner v. State, 919 N.E.2d 109 (Ind. 2010), in which the Indiana justices ruled that Hevner, who had been convicted of a sex offense, was subject to conditions of probation, including living within 1,000 feet of a school. Gaither claimed that because he owned his home before he committed the child molesting, he should be allowed to stay in it.

The justices “made no distinction between ownership and mere residency, and the fact that an offender owns a home in which he is not allowed to reside during his term of probation or parole is immaterial in determining whether a condition of probation or parole is related to an offender’s rehabilitation, while protecting the public,” wrote Judge John Baker.

The appellate court ruled in Mark Gaither v. Indiana Dept. of Correction, et al.,18A02-1111-MI-1073, that Indiana courts have held that prohibiting a sex offender from living within 1,000 feet of a school as a condition of probation is reasonably related to the offender’s rehabilitation and is permissible.

 

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  • SOR
    I read and I have the article that states that the Indiana Supreme Court ruled unaniousmly the sex offender registration is punitive (puinishment) therefore it is doublr jeopardy!
  • Rehab
    If someone is convicted of possession of child porn but never did anything else or caused harm to a child or any other person in their 40+ years, what type of rehabiltation do they need? Should they have their eyes poked out?

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  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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